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Prop 65 Has its Perks for Plaintiffs' Lawyers in Coffee Litigation

First, they argued that Californians must be warned of the possible carcinogenic effects of driving in parking garages. Then it was lighting matches, eating potato chips, and plugging in Christmas lights. According to plaintiffs’ lawyers, our most innocuous habits must be warned against. Now, drinking coffee is a purportedly dangerous practice–or so alleges The Council for Education and Research on Toxics (CERT).

CERT has brought a lawsuit against coffee roasting companies under California’s Proposition 65. Prop 65, as many Californians are aware, requires warning labels to be placed on products that contain materials the state alleges are associated with cancer, and the act’s private attorney general provisions allow consumers–even those who cannot show they’ve been harmed–to bring lawsuits to enforce the act. The act also provides for attorneys’ fees.

You can guess what Prop 65 hath wrought: litigation has erupted, and strike suits under the act have become a cottage industry. Even the iPhone (not my iPhone!) has been targeted by environmental groups.

According to the California Office of the Attorney General, 74% of Prop 65 settlement awards in 2011 went to attorneys’ fees and costs. Producers have responded accordingly, and companies now slap Prop 65 warnings on just about every product in an effort to not be sued. This fact severely undermines the usefulness of the warnings.

CERT, who first sued coffee merchants in 2010, and later grocery stores in 2011, recently added coffee companies to its roster of defendants for their failure to warn of coffee’s high levels of acrylamide. Acrylamide is created during the process of roasting coffee beans; it’s not an additive, and it’s not new. So it’s not as if the coffee that so many of us cling to as a morning ritual has suddenly become dangerous. The same coffee we’ve been drinking for years, whether made by our neighborhood barista, or in our own homes, has always had acrylamide, and so do many other products heated during production.

This is just another battle in the fight for more warnings–incessant warnings which at some point likely have higher cost than benefits. Studies have shown that too much information confuses rather than helps consumers, and a recent survey found that 52% of consumers say that completing their taxes is easier than knowing what they should do to live a healthier lifestyle.

We’re becoming an over-warned nation; take the case of a sleep-aid company that warns that its product “may cause drowsiness.” Or the chainsaw company that warns against “hold[ing] the wrong end of the chainsaw.” Mandated disclosures often fail to consider the value of the compelled information, or the costs to the businesses that must provide the warnings and the consumers who subsidize those costs.

Such is the problem with Proposition 37–on California’s November ballot. As we’ve described, Prop 37 requires mandatory labeling of genetically modified foods, and regulates the use of the term “all natural.” This, despite the agreement of several scientific authorities that GM food is safe for consumption. Similarly, while San Francisco recently tried to compel warnings regarding cell phone emissions, the Ninth Circuit struck down the law because it was misleading to consumers; there was no scientific evidence cell phone emissions posed the alleged risks.

There comes a time when providing information is too costly, too misleading, and not valuable enough to justify providing it. Plaintiffs’ lawyers will argue otherwise. But if they were truly concerned with protecting the public, they’d submit to regulation through legislation, not costly litigation. And they’d leave our morning joe alone.

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